Wednesday, April 18, 2012

NC Supreme Court Decisions, April 13, 2012

State v. Paul Lewis.

Held: Defendant entitled to a new trial.

First, the trial court improperly refused to allow the defendant to cross the lead detective about how he had tampered with the jury at the first trial (the first trial conviction was reversed due to the lead detective's jury tampering).

Second, defendant may cross the investigators, on retrial, about victim identifying a co-defendant as well as the defendant, who later had his charges dropped due to an alibi.

 Third, no error in admitting the witnesses identification of a knife found in defendant's home as the weapon, even though the state lost the evidence, as their is only speculation that testing the knife would result in some sort of exculpatory evidence.

Fourth, additional hearings required on in court ID suppression motion, as some evidence suggests that the line-up was unduly suggestive: one witness said it had 7 pictures, 3 of which were the defendant.

State v. David Lawrence.

Clarified plain error standard (standard of review when no objection is made at trial):

In this case, in granting relief, the court of appeals described plain error as: "the party asserting error bears the burden of“demonstrating that such error was likely, in light of the entire charge, to mislead the jury.”

Other formulations from other cases:
  • "“It was highly plausible that the jury could have reached a different result"
  • “a different result probably would not have been reached absent the error"
  • "so grave as to deny a fundamental right of the defendant so that, absent the error, the jury would have reached a different result"
  • holding that any error was harmless and thus not plain error
Normal Error: where there's an objection, requires reversal if:
  1. The court wrongly denied a timely objection that was properly preserved
  2. The error was not harmless: the reviewing court cannot say the error was harmless beyond a reasonable doubt. The state bears the burden of showing harmless if it is a constitutional objection; the defendant bears the burden if it not a constitutional objection.
Certain errors of fundamental fairness, require reversal without such showing, as harm is presumed.

Plain Error: when there's no objection or the objection did not properly preserve the issue, requires reversal if:
  1. Defendant bears the burden to show that
  2. A fundamental error occurred at trial--that it had a "probable impact on the jury's finding that the defendant was guilty" and must "seriously affect the fairness, integrity, or public reputation of judicial proceedings.
Reversed here, finding that the trial court's erroneous jury instructions did not constitute plain error.

State v. Robert Joe. Digged.

Tuesday, April 17, 2012

Judge to Rule in Racial Justice Act Case on Friday

Judge Weeks will be announcing his decision, the first of its kind, on the racial justice act claims of Marcus Robinson on Friday, at 9:30am.

Tuesday, April 10, 2012

Capital Murder Trial Underway in Raleigh

Colin Willoughby, desperately seeking a death sentence.
The capital murder trial of Jason Williford is underway in Raleigh. Jury selection is underway and will likely last for weeks.

The last two capital trials in Wake County, Joshua Stepp and Samuel Cooper, both ended in a jury verdict of less than death. Cooper was charged with the murder of 5; Stepp with raping and murdering a child.

Despite these two discouraging verdict, Wake County DA continues on in his quest to obtain a death sentence. Death penalty cases tie up the office--as murder trials last much longer and require additional personnel--limited resources that could be used elsewhere. Also, even if a death verdict is returned, instead of closure, the families get to endure 10-15 years of additional litigation as talented lawyers review and challenge all aspects of the case.

Instead of pleading these cases out for life without parole or trying them non-capitally, Willoughby continues his quixotic quest with state money. Isn't enough enough?

Monday, April 9, 2012

6,149 Days

Greg Taylor was wrongly convicted of murder in 1993, the result of a rush to judgment by police, evidence that was withheld from the jury and misleading testimony by key witnesses. In a powerful new documentary, two years in the making, WRAL-TV chronicles the flawed investigation that led to Taylor’s conviction, his 6,149 days in prison and the fight to set him free.

Capitol Broadcasting announced today that it will be airing a documentary about Taylor, "6,149 Days" on April 12 at 8:00pm on WRAL in Raleigh, WILM in Wilmington, and WJZY in Charlotte.

Wednesday, April 4, 2012

NC Court of Appeals Criminal Decisions, April 3, 2012

All wins for the defense today.

State v. Harris. Mecklenburg County. Appeal of conviction for sex offender unlawfully on premise of "place intended primarily for the use, care or supervision of minors." Defendant was convicted and sentenced to 7+ years in prison.

Facts: Defendant found asleep in a vehicle parked in a school parking lot. The defendant's girlfriend worked at the school. Under the terms of his registration, he was required to have written permission from the principal before being on school grounds, which he did not have.

Defendant argues the court lacked subject matter jurisdiction due to a defective indictment. For an indictment to be effective, it must allege all the essential elements of the offense.

The indictment read: "THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 14th day of January, 2010, in Mecklenburg County, Charles Fitzgerald Harris did unlawfully, willfully and feloniously on the premises of Winget Park Elementary School, located at . . . Charlotte, North Carolina. A place intended primarily for the use, care, or supervision of minors and defendant is a registered sex offender."

First: That the indictment lacks a statement that defendant went onto the premises. This is not persuasive. The fact that the sentence is grammatically nonsensical does not mean it didn't provide adequate notice to the defendant. This is a clearly clerical error.

Second: That the indictment omits the term "knowingly." This is not problematic either.  The term willfully adequately indicated a mens rea requirement.

Third: That the indictment did not allege a prior sex offender conviction. This has merit and the lack of this made the indictment defective. This is a clear element of the charge and its omission deprived the court of jurisdiction.


State v. Justice.  Henderson County. Appeal of conviction for larceny from a merchant by removal of an anti-theft devise.

Defendant was caught shoplifting at a Belks, after removing the anti-theft tags off some clothing. She admitted to removing the sensors. She was stopped before she exited the store.

Defendant was charged with felony larceny from a merchant by removal of an anti-theft devise and habitual felony. She was sentenced to 15 years!!!

Defendant challenges the indictment as defective. N.C.G.S. 14-72.11 makes it a class H felony to commit larceny "By removing, destroying, or deactivating a component of an antishoplifting or inventory control device to prevent the activation of any antishoplifting or inventory control device." (Note: mere concealment is a class 3 misdemeanor and regular larceny a class 1 misdemeanor).

The essentially elements of larceny are the: (1) taking of a property of another; (2) carrying away; (3) without consent; (4) with the intent to permanently deprive. For this special kind of larceny, they must also allege (5) removal of an anti-shoplifting device. The property alleged to be stolen must be identified with sufficient certainty.

Here, the indictment states:

"The jurors for the State upon their oath present that on or about the date of offense shown and in Henderson County the defendant named above unlawfully, willfully and feloniously did remove a component of an anti-theft or inventory control device to prevent the activation of the anti-theft or inventory control device. This act was committed in an effort to steal merchandise from Belks [sic] of Hendersonville, NC."

This indictment only lists "merchandise." It does not identify the specific property stolen. Indictment defective, conviction vacated.

Further, the indictment only alleges that a larceny was only attempted, not completed ("This act was committed in an effort to steal merchandise"). 


State v. Rhodes. Rockingham County. State appeal of trial court award of new trial based on newly discovered evidence.

Defendant was convicted of  possession with intent to sell/deliver cocaine. He sought and was granted a new trial based on newly discovered evidence: his father confessed to a probation officer that the drugs were actually his, not his son.

No error in granting a new trial on this basis. To get a new trial based on new evidence must show that there is new evidence, that is probably true, that is material and competent, that due diligence did not discover the evidence at trial, that it is not merely cumulative and does not merely contradict a witnesses testimony, and, if admitted, a different result would have been likely.

No abuse of discretion in finding that this evidence meets this test.

Tuesday, April 3, 2012

Mistrial in 2nd Danny Hembree Case

A judge declared a mistrial in the Danny Hembree capital murder case in Gaston County.

Danny Hembree
Hembree was previously convicted of a different murder and placed on death row for the murder of Heather Catterton. This trial related to the death of Randi Saldana. Hembree alleges the death was an accident during sex (an accident he then tried to cover up by burning and hiding the body).

During the trial, Hembree brought up a letter alleging that he had sex with the assistant district attorney Stephanie Hamlin. At this point, his lawyers, Rick Beam and Brent Ratchford, moved to withdraw. The state objected and Hembree objected to their objection.
Saldana's sister then yelled out "Well I object to you killing my sister" or "You killed my sister you son of a bitch" according to differing reports. 

Judge Beal put an end to things and declared a mistrial. The saga continues.